Employers - don’t be childish when dealing with employment law

This case involved two cabin crew that were employed by EasyJet. Following maternity leave they were still breastfeeding their babies.

Due to operational reasons,  EasyJet operated a roster system which required crew to fly the rosters given to them, with no maximum on the length of a day's work.

As a result of the roster, the employees requested altered shifts so they could work shorter than eight hour shifts. This would allow them to express breast milk without exposing themselves to a medical condition “mastitis”. The request was based on the recommendation of their GPs.

EasyJet refused the employees’ request on the grounds of ‘health and safety’ due to the risk of unforeseen flight delays/cancellations which could result in them potentially working more than eight hours.

After the employees took a period of sick leave and unpaid leave, EasyJet eventually agreed that they could carry out temporary ground duties for six months, which would allow them to breastfeed in accordance with medical guidance.

As a result of this treatment and the delay in offering the ground duties, the employees brought an employment tribunal claim.  They argued that they had suffered indirect sex discrimination due to the roster.  They also argued that EasyJet had failed to suspend them on full pay or failed to provide them with ground duties earlier.

Outcome

There is no statutory right to time off to breast feed.

However, the employment tribunal ruled that EasyJet's failure to accommodate the employees' breastfeeding requirements amounted to indirect sex discrimination, stating that the correct approach would have been to find the employees alternative duties within the organisation (there was a long delay), suspend them on full pay or reduce their hours.

Further, the employment tribunal found that EasyJet failed to carry out their own risk assessment of the situation, ignored medical advice, failed to involve their occupational health and implement their own policy.

The employment tribunal held that the roster created a particular disadvantage for women as compared to men. This was because women tend to be the main carer and in this particular case were breastfeeding. It also made a finding that EasyJet could not objectively justify the roster. They held that EasyJet did not provide any real examples of where implementing  bespoke individual rotas would have caused any operational issues. The evidence presented at employment tribunal was based on speculation.

The employment tribunal also thought it was unreasonable for an employer to ask new mothers how long they expected to continue breastfeeding and that it was suggested that they could express in a toilet (contrary to EasyJet’s own policy).

The employment tribunal placed great weight on the evidence that the employees were able to produce of the increased medical risk of being prevented from expressing milk after periods of eight hours. The employment tribunal also found that the employees’ deemed suspended because they were not offered work for a period of time and should have been offered ground work much earlier than they were. They were therefore entitled to remuneration for the period of their suspension. As a result of the employment tribunal’s findings the employees were awarded compensation which included financial losses and injury to feelings.

What does this mean for you or your business?

The decision, whilst not binding, serves as a good reminder of how to treat and deal with breastfeeding employees and how a failure to make adjustments for breastfeeding employees can result in a finding of sex discrimination.

It is all too easy to try and justify an employment policy based on operational reasons or speculative evidence. To justify an employment policy however, a tribunal will want to see clear and compelling evidence of why a policy is justifiable. Tribunals will expect to see specific examples of why in practice a policy should be allowed when it is otherwise discriminatory. EasyJet failed to do this. 

It may be that in cases like this, as an employer you agree a trial period with an employee to see how it works logistically and operationally.  If the trial period does not work operationally, this may be the evidence you require to persuade a tribunal that you have not discriminated against an employee. 

What should you be doing now?

In relation to breastfeeding:

• Think carefully when approached about making changes to work patterns. Do not automatically say “no” but consider the position and, if possible, accommodate employees who wish to take time off in order to breastfeed.

• Follow your own policy (if you have one). EasyJet didn’t in this case.

• Utilise the breastfeeding/expectant mothers guidance provided by ACAS, HSE and the EHRC Code of Practice on Employment. 

• Carry out a risk assessment for employees that are proposing to breastfeed at work and provide suitable facilities.

• Consider medical advice that an employee provides from their GP or occupational health and consult with the employee on this advice.

• Do not put pressure or question employees about when they intend to stop breastfeeding. The employment tribunal found that EasyJet were intrusive in this case.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.